the United States Court of Appeals for the Eighth Circuit

“ From that opinion we glean a recognition of, and a reliance in part upon, attitudes of contemporary society and comparative law. And the emphasis is on man's basic dignity, on civilized precepts, and on flexibility and improvement in standards of decency as society progresses and matures. ”

“ Despite the January 1966 requirement that no inmate was to inflict punishment on another, the record is replete with instances where this very thing took place. (3) Regulations are easily circumvented. Although it was a long-standing requirement that a whipping was to be administered only when the prisoner was fully clothed, this record discloses instances of whippings upon the bare buttocks, and with consequent injury. (4) Corporal punishment is easily subject to abuse in the hands of the sadistic and the unscrupulous. ”

“ Punishment may include solitary confinement, reduction of rations, corporal punishment, loss of mail, recreation and other privileges, loss of future good time, and recording the offense for parole purposes. Corporal punishment shall not exceed ten lashes with the strap and a period in solitary confinement. In no case may the strap be applied to the bare buttocks. An accuser or other inmate shall not administer the strap. The strap shall not be used in the fields. No inmate shall be whipped within 24 hours of any preceding whipping. ”

“ California, supra, 370 U.S. at 676, said, "The Eighth Amendment expresses the revulsion of civilized man against barbarous acts—the 'cry of horror' against man's inhumanity to his fellow man." In Rudolph v. Alabama, 375 U.S. 889 (1963) , three dissenters to the denial of certiorari spoke of "standards of decency more or less universally accepted," of disproportion between offense and punishment, and of "unnecessary cruelty." ”

“ These were in effect until the district court decision in the present case was rendered June 3, 1967. In addition to a number of other provisions, the rules state that certain "major offenses will warrant corporal punishment." The ones listed are homosexuality, agitation, insubordination, making or concealing weapons, refusal to work when medically certified able to work, and participating in or inciting a riot. They further state:
No inmate shall ever be authorized to inflict any corporal punishment under color of prison authority on another inmate. ”

“ We were also advised that at a meeting of the Board held February 29, 1968, with all members in attendance, a resolution was adopted that corporal punishment in any form "be abolished as a means of discipline in the institution." ”

“ It "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." 356 U.S. at 102. Virtually all the world's civilized nations refuse to impose statelessness as punishment for crime. ”

“ It may be observed in this connection that penal admeasurements made by general conscience and sense of fundamental fairness doubtless will not be without some relationship to the humane concepts and reactions of present-day social climate. ”

“ Supposedly, they are administered [*575] while the prisoner is fully clothed. Petitioners Ernst and Mask, however, testified without contradiction that they were required to lower their trousers and that they received lashes on the bare buttocks. There is corroborating and other evidence to the same effect with respect to other inmates and there was proof, some offered through the State Police, of deep bruises and bleeding.
12.Whipping is the primary disciplinary measure used in the Arkansas system. Prisioners there have few privileges which can be withheld from them as punishment. ”

“ Vermont, 144 U.S. 323, 332 (1892) ; and Collins v. Johnston, 237 U.S. 502, 510–511 (1915) , the Eighth Amendment's guarantee against the infliction of cruel and unusual punishments seems now to have come to be regarded as directly applicable to the states through the due process clause of the Fourteenth Amendment. Robinson v. California, 370 U.S. 660, 666 (1962) , and Mr. Justice Douglas in concurrence at 675; Wright v. McMann, 387 F.2d 519, 522 (2 Cir. 1967) . See State of La. ex rel. ”